ON REHEARING
By THE COURT:Submitted on application for rehearing. The application quotes from our opinion, as follows:
“But upon consideration of the whole record there is an issue whether or not there was a pre-existing debt owing from Morgan St. John to the plaintiff. It is incumbent upon the plaintiff to prove a preexisting indebtedness against Morgan St. John to support the note given by the defendant if she was an accommodation maker.”
The application apparently interprets our opinion as holding only that there was an issue made on the pleadings. We stated that there was an issue made upon the whole record. That is to say, not only upon the pleadings but also upon the evidence. If we could follow the premise of the plaintiff that “there is no conflict in the evidence,” certainly we must follow the conclusion. However, we cannot do so.
We have heretofore held, and upon reconsideration are of opinion that there is a conflict in the testimony and a conflict in inferences which may be drawn from the undisputed testimony. We did not deem it necessary heretofore to point out the specific testimony from which the inferences against plaintiff’s cause may be drawn.
The plaintiff may fail, not alone because of the sufficiency of the defense, but also because of the weakness of his own cause.
There is not, nor can there be any confusion as to the burden of proof, which is essential to recovery by the plaintiff on the note. If the plaintiff had offered the note and rested and no more evidence was forthcoming, he would have made his case. However, this is not the state of the record. It sets forth all of the facts and circumstances incident to and surrounding the transactions which led up to and existed at the time of the giving of the note.
“* * the burden of proof rests upon him (the plaintiff) at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced on the trial.” Ginn v Dolan, 81 Oh St 121.
Inasmuch as we may not have expressed ourselves fully enough on the evidence from which we have determined that there is a factual question, we briefly refer to some of the circumstances which appear in the testimony, many of which are un-contradicted. The note for $3680.00 was given. April 14, 1924, almost twelve years before any action was instituted upon it. *293For many years during the period between the giving of the note and suit thereon no mention was made of its possession by the plaintiff. The consideration for the note, as stated by plaintiff, is made up of items as to proof of which no specific, tangible evidence is forthcoming. Each and every item is predicated upon the memory of the plaintiff, although admittedly, there are corroborative facts. Morgan St. John made an assignment for the benefit of his creditors in 1909. $1100.00 of the consideration is for money claimed to have been loaned by the plaintiff to Morgan St. John a year before the assignment for creditors. $1800.00 of the consideration for the note was outlawed when the note was given. The testimony of the defendant is in the record for what it is worth on the issue of consideration respecting the occurrence at the time that the note was given. No canceled check for any of the money which plaintiff claims to have advanced to his lather is produced, although it is claimed the checks were given for certain of the amounts. Plaintiff presents a reasonable explanation for the disappearance of the checks but this explanation does not demand that one inference only be drawn from it. The jury has a right, within reason, to draw its own inferences as to whether or not the statement of the plaintiff is true.
There are other factors touching the reasonableness and probability of plaintiff’s evidence, all of which are within the province of the jury to determine. The jury might well determine that consideration moved from the plaintiff to his father for some of the amounts constituting the total sum set forth in the note, but not all thereof.
This court can only grant the relief sought by plaintiff upon a determination as a matter of law that there is no factual issue whatever for the jury to consider upon the pleadings and the evidence. This we cannot do. Our opinion whether or not the plaintiff has definitely sustained the burden of proof upon this record is immaterial so long as there is a question of fact for the jury to determine.
The application for rehearing will be denied.
CRAIG, PJ, HORNBECK and BARNES, JJ, concur.